Will the Court Shift Under the Next President?

11.01.12 4:00 PM ET

Noah Feldman thinks that there will be not much difference between Obama and Romney administrations--certainly less--than partisans think, if only because the political environment is going to dictate what they do. I agree with this. He thinks the big fight will be over the Supreme Court; I also agree with this. And he thinks there's potential for a big change:

When it comes to Supreme Court appointees, though, the differences really are going to be stark -- and they will last for a generation. Somehow the campaigns have failed to remind us that four justices are 74 or older, meaning they will be at least 78 by the end of the term. Justice Ruth Bader Ginsburg is already 79, with Justices Antonin Scalia and Anthony Kennedy not far behind at 76 and Justice Stephen Breyer at 74. One hopes of course they all live long lives, but the notion that all four will still be willing and able to serve the next four years is preposterous. Several will retire and be replaced -- and even one replacement could fundamentally change the configuration of the court.

Here we part ways. Yes, Ginsburg has been sick, but as far as we know, she's now cancer free. And patients who have something to live for have an incredible ability to keep going. The justices are going to cling to their seats like deranged limpets until a president of their party is ready to replace them. Perhaps Ginsburg should have strategically retired now, rather than risking eight years of a Romney term. (Though, of course, by the time it was clear Obama might actually face a fight, there was no chance he'd get another Supreme Court nominee through Congress.) But presumably she knows more about her health status than we do; if she decided to roll the dice, I'm going to assume she thinks her life expectancy is at least another decade.

At this point, it seems to me that the most likely scenario for a turnover is either an accident, like a justice getting struck by a car, or an elderly justice who gets stubborn and doesn't retire when they "ought" (Breyer and Ginsburg should probably pack it in in the next few years, assuming an Obama re-election; if they don't, they have a higher-than-50% risk of dying in their seat and letting a GOP administration replace them.)

I wouldn't be entirely surprised to learn that conservative groups have some sort of team of secret ninja minders who shadow conservative justices and make sure that nothing happens to them while a Democrat is in office. Or that the Center for American Progress has a detailed emergency plan to encase Ruth Bader Ginsburg in bubble wrap for the next four years should Romney win next week's election.